1. Plaintiff is the appellant. She filed the suit out of which this appeal arises for a declaration of her right to light and air to a room in her house, which she was using as a kitchen. She complained that the window through which she was getting light and air was threatened to be obstructed by a construction which the defendant proposes to put up in his own house. The defendant denied the easement right claimed by the plaintiff. Two issues were raised:
(1) Has this window been therefor the statutory period? (2) If so, will the proposed construction of defendant, have the effect of diminishing the flow of light and air to such an extent as to entitle the plaintiff to the injunction claimed?
2. There was only one witness examined at the trial and that is the plaintiff. She gave evidence that the window has been there at least from 1909 when she purchased the property. She also said that that is the only window on the southern side and if it is closed there will be no light and air in the room and that it would not be possible to cook properly. There was no cross-examination except to elicit that in 1924 she put up a chimney to the kitchen and that the smoke will get out through the chimney. No evidence was adduced on the side of the defendant. The learned Judge has found that the plaintiff has established the easement of light and air through the window in the kitchen of the plaintiff. That finding is not challenged before me. The learned Judge made an inspection of the premises on the day prior to the date of the trial. In the judgment he gave various directions which, if observed by the defendant, would, in his opinion, be enough to protect the right of the plaintiff which he finds in her favour. In the judgment there is a reference to a window on the northern side of the plaintiff's room and also to a door way on that side through which he says a fairly good amount of light and air gets into the plaintiff's kitchen. It is complained before me by the appellant's learned Advocate that the window on the northern side is so situated that practically there is no light and air coming through that window. There are also other observations made by the learned Judge which are all evidently based upon the impressions that he formed at the time when he made the local inspection. In cross-examination the defendant did not elicit from the plaintiff any of the facts on which the judgment is now based. Nor did the learned Judge think it necessary to put those questions to the plaintiff and have her answers on those points. The learned Judge has based his judgment solely on the impressions formed by him at the time of his local inspection and has come to a conclusion quite contrary to the only evidence on the point, namely, that if the alterations proposed by the defendant were carried out the room would be rendered useless for the purpose for which it is being used. The Judge did not make any notes of inspection and he has not placed on record what it is that he found on inspection so as to enable this Court to come to an independent conclusion whether his decision is right. In Syed Ahamad Sahib Shutari v. The Magnesite Syndicate, Ltd. : AIR1915Mad1214(1) which was decided by Seshagiri Aiyar and Kumaraswami Sastriar, JJ., it is said:
Even under the old Code it was held by the Judicial Committee of the Privy Council that a judgment should not be based solely on the result of the personal inspection by the Judge. See Kessowji Issur v. G.I.P. Railway Co. (1907) 17 M.L.J. 347 : L.R. 34 IndAp 115 : I.L.R. 31 Bom. 381 . The same reasoning applies to cases instituted under the new Code. See Raikishori Ghose v. Kumudini Kanta Ghose (1910) 15 Cal. L.J. 138. The inspection which a Judge makes should be used by him only to test the accuracy of the evidence let in. He should not, without submitting himself to the test of cross-examination make his knowledge the sole evidence for determining the question raised before him. We have no hesitation in holding that the procedure of the learned Judge has seriously prejudiced the appellant.
3. The decision of Anantakrishna Aiyar, J., in Municipal Council v. Velayudha Menon : AIR1931Mad531 is also to the same effect. He says:
I must say that, though it is open to Courts who have to record findings on questions of fact, and though it may also be proper for the Court-in proper cases to make local inspection with a view to understand and follow the evidence in the case and to appreciate it properly, I am clear that it is not open to a Court either of first instance or of appeal to base the Court's findings of fact solely on the result of its local inspection nor without giving opportunities to the parties to let in counter evidence and explain what is recorded as the result of the inspection.
4. In the present case, as I said before, the judgment is based solely on the observation made by the Judge at the time of his local inspection and he has not placed on record what it is that he found at the time. These points were not put to the plaintiff and her answers elicited. In this state of the record, I am constrained to reverse the decision of the lower Court and to send the case back for disposal according to law. Costs of this appeal will abide and follow the result.
5. It is not to be understood that I agree with the observations of the lower Court as regards the standard of proof which the plaintiff has got to adduce before succeeding in the suit.